Daniel v. United States, No. 17578.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JONES and BROWN, Circuit , and WRIGHT
• Citation: 268 F.2d 849
• Parties: Mack DANIEL and Ab Daniel, Appellants, v. UNITED STATES of America, Appellee.
• Decision Date: 30 June 1959
• Docket Number: No. 17578.

268 F.2d 849 (1959)

Mack DANIEL and Ab Daniel, Appellants,
v.
UNITED STATES of America, Appellee.

No. 17578.

United States Court of Appeals Fifth Circuit.

June 30, 1959.

268 F.2d 850

J. Sewell Elliott, Macon, Ga., for appellants.

Floyd M. Buford, Macon, Ga., Frank O. Evans, U. S. Atty., Macon, Ga., for appellee.

Before JONES and BROWN, Circuit Judges, and WRIGHT, District Judge.

J. SKELLY WRIGHT, District Judge.

Appellants, Mack and Ab Daniel, were convicted in one count of an indictment with possession of non-tax-paid whiskey. In another count, Mack Daniel was convicted with selling non-tax-paid whiskey. Pending this appeal Ab Daniel died. Since a criminal prosecution abates ab initio upon the death of an appellant,¹ only Mack Daniel's appeal will be considered.

The evidence shows that on January 24, 1958 Abernathy, a federal Alcohol and Tobacco Tax Unit agent, accompanied by the informant, Gordy, purchased twelve gallons of moonshine whiskey from Mack Daniel for $48.00. The whiskey was obtained by Daniel from the woods not far from his house. On January 26th, Abernathy, again accompanied by Gordy, purchased twenty-five gallons of moonshine whiskey from Mack Daniel for $100.00. Again the whiskey was obtained by Daniel from the woods near his house. Mack Daniel denied the transactions and, through the testimony of various witnesses, offered an alibi. The jury, on substantial evidence, rejected the alibi and convicted Mack Daniel of the offenses charged in the indictment.

Since the evidence was clearly sufficient to support this conviction, the trial court properly held that the defendant's motion for judgment of acquittal was without merit. The defendant, however, charges the trial court with several other errors, each of which he claims requires reversal of his conviction. We shall consider these charges in the order in which they are alleged in appellant's specification of error.

During the trial a doctor testified for the defendant Ab Daniel to the effect that Ab Daniel was suffering from a serious heart condition, that his physical condition was such that he could not perform the acts he is alleged by the Government to have performed in the commission of the offense with which he was charged, and that this same physical condition prevented him from testifying as a witness in his own behalf. The Government, in order to meet this testimony, moved the Court to have Ab Daniel examined by a doctor chosen by the Government. Overruling the opposition of his counsel, the Court ordered Ab Daniel taken into custody by the Marshal and brought to a doctor for examination. This doctor subsequently testified for the Government to the effect that Ab Daniel was indeed able to perform the acts alleged and that, moreover, he could testify in his own defense, including cross-examination,

268 F.2d 851

without seriously endangering his life. Ab Daniel did not take the stand

Appellants spend the greater part of their brief on this point, the brief having been written before the death of Ab Daniel. Without in any way passing upon the propriety of the Court's order arresting Ab Daniel, having him examined,² and allowing the doctor to testify for the Government over his objection, suffice it to say that as far as Mack Daniel is concerned, whose appeal is the only one pending, the Court's action had no bearing on his case. In fact, the point was not argued on behalf of Mack Daniel in the brief. In a supplemental brief, filed after the death of Ab, counsel suggests that because Ab and Mack were brothers, this action on the part of the Court could have in some way adversely affected Mack. There is no merit in this suggestion. The jury was not apprised of the Court's order and the testimony given by the doctor called by the Government related to Ab and Ab alone. The issue is totally without relevance to Mack Daniel who testified fully in his own behalf.

The defense asserts that the Court also erred in denying its motion for a mistrial based upon the prosecuting attorney's reading into the record testimony already ruled inadmissible. At a previous trial of this case, which ended in a mistrial, the testimony of one Howard Snelson was taken as a witness for the defense. Snelson was not available at the time of the second trial and the defense was allowed to read this testimony into the record. After the direct testimony of the witness had been read by defense counsel, the district attorney read the cross-examination. After the reading of the entire testimony of Snelson taken at the former trial was concluded, defense counsel moved for a mistrial on the ground that the district attorney had read into the record certain questions and answers which the Court at the former trial had ruled inadmissible. The questions dealt with the presence of a still behind Mack Daniel's house, the witness denying any knowledge whatever thereof.³

The defendant first suggested before the trial court that the conduct of the district attorney was reprehensible in reading into the record testimony he knew had already been ruled inadmissible. When it was shown that the Court's ruling on the admissibility of testimony appeared, not on the page from which the district attorney had been reading,

268 F.2d 852

but on the next page, counsel nevertheless contended, and still contends, that, intentionally done or not, the damage was the same

The Government argues with considerable force that the testimony, although inadmissible on the first trial, was admissible on the second because there had been in fact some testimony at the second trial with respect to a still near Mack Daniel's house, a still in the woods from which the liquor purchased in this case was obtained. But it is not necessary to rule on whether or not the testimony was admissible in the second trial. The transcript which was read to the jury showed that the testimony was ruled inadmissible at the time of the first trial. That ruling, and the instruction of the Court telling the jury to disregard the testimony, was read to the jury at the second trial. Later, after the reading of the entire testimony was concluded, and the motion for mistrial was made, the district court again admonished the jury to disregard the testimony. The jury, no evidence indicating otherwise, is presumed to have complied with the Court's instruction.⁴ Moreover, counsel for the defendant was apparently satisfied to have the entire colloquy read to the jury because no objection was made either before or immediately after it was read. Counsel waited until the entire testimony was concluded before moving for mistrial based on the reading. Such...